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Patent History Materials Index - ANNUAL REPORT OF THE COMMISSIONER OF PATENTS FOR 1856

Report of the Commissioner of Patents for the year 1856

United States Patent Office

January 31, 1857

Sir: The condition of this office remains nearly the same as at the time of my last annual report. The business has been constantly increasing, but the force employed has thus far been found adequate to its prompt and thorough discharge.

The number of cases in the office undisposed of at any time throughout the year would probably average about one hundred. At the end of the year it was only forty. It is hardly practicable to have less unfinished business awaiting the action of the office at one time or to dispose of applications more promptly than has been done with most of the classes of cases during the past year.

The following tables, continued from previous reports, will show in a brief and general way, many important facts connected with the business of the office; and also in respect to its present condition.

It appears from these statements that the disbursements for the past year have been $7,343 greater than the receipts. This deficiency is chiefly owing to the fact that, by an item in the Civil and Diplomatic Appropriation Bill of the last session of Congress, extra compensation, amounting to $6,695.28, was allowed to certain of the assistant examiners and clerks in the Patent Office for services rendered prior to the 4th of March, 1855. But for this allowance -- which cannot at all events be regarded as a legitimate expenditure for the year 1856 -- the disbursements would have exceeded the revenue only $647.72

The foregoing tables also show that the business of the office has increased during the year in about the usual proportion. There have been 525 more applications, 118 more caveats, and 478 more patents than in 1855.

It will be seen that the patents have increased in a much greater ratio than the applications; in other words, there have been proportionately fewer rejections than during the previous year. This is probably attributable in a very great degree to progress made (in and out of the office) in the knowledge of the proper principles and rules in accordance with which patents should be granted or refused. If perfection were attained in this respect, and if the condition of arts and inventions throughout the world were thoroughly understood by both agents and examiners, there would be no rejections at all. The applicant and the examiner would come to one and the same conclusion. Disagreement would be as impossible as in an arithmetical calculation. Hence, every advance made in that direction tends to diminish the difference between the number of applications and the number of patents.

The following table will show how the number of patents in the United States compares with those of England and France for several years past:

The number of patents issued from this office has now grown to exceed those granted by the English office, and the number of applications is greater than are made to that of France. In those two countries there is no examination of applications in the manner practiced here, and nearly all patents applied for are granted.

Most of our present laws and regulations relative to patents have been derived from England, and it is probable that other features of their system might be studied with advantage as a means of improving our own.

One of these is the provisional protection or temporary patent for six months. This is somewhat in the nature of our caveat, but, if modified so as to be adapted to our system, would be found an improvement upon our present practice.

A caveat under our law only operates prospectively. It prevents the office from issuing a patent on any application made within one year subsequent to the filing of the caveat without first giving the caveator a chance to be heard. But if an application for the self-same invention had been made one day previous to such filing, no notice whatever would be taken of the caveat. The very person employed to prepare the papers for the caveat, if sufficiently unscrupulous, can make an application himself for a patent for the same invention. If he anticipates the filing of the caveats by a single day, he may, at a subsequent date, obtain a patent of which there is now no power in this government to deprive him, until it has run its full length of fourteen years. Such a circumstance is known to have actually occurred in this office.

If, instead of a caveat, which only operates upon applications subsequently made, a provisional protection had been allowed which would apply to any case pending in the office, a six months' protection of this kind would be far preferable to a twelve months' caveat.

This protection might be allowed to issue as a matter of course, to be kept secret at the option of the applicant, who would receive a certificate showing his right to a provisional protection. After obtaining such protection, no patent for substantially the same invention should be allowed to issue to any other applicant, whether prior or subsequent in date of its being filed, without giving the holder of that protection an opportunity to show his superior title to such patent. And if, before the expiration of the provisional protection, an application were made by the holder thereof for a full patent, such patent, if allowed, might at the option of the applicant be dated and made to relate back to any day of the sixth months of the provisional protection, as is in the case in England.

It might perhaps be deemed expedient to declare that no person should be made liable for the infringement of the provisional protection without being actually notified of its existence; but even with that qualification it would be a great safeguard of the rights of the inventor, and would prevent many outrageous wrongs for which our present law affords no protection or remedy.

Another feature of both the English and French regulations, is, that the patent fee is paid by installments, thus allowing the patentee, in effect, to surrender his patent whenever he finds it of less value than the installments still unpaid. A large majority of the patents are worthless.

The course pursued in England and France permits the inventor to feel his way by degrees, venturing from step to step, with the power of retreating at any moment he feels inclined to do so.

For instance, in England the applicant, in the first place, obtains a provisional protection for six months. This affords him time to perfect his invention, protects him in the mean time against piracy, and gives him an opportunity to satisfy himself to some extent whether it will be prudent for him to venture further. If so, he gives public notice of his intention to that effect; and if no opposition is then made, his patent issues as a matter of course, taking date, at his option, on any day of the six months of his protection.

If, before the end of three years from the date of his patent, he chooses to pay the further fee fixed by law, his patent possesses vitality for four years longer; and if, before the end of that term, he pays another prescribed fee, the patent is continued for seven years more.

In this manner the revenues of the Patent Office are paid in a larger proportion than under our law by those who derive most advantage from their patent, and can therefore best afford to pay them. If the same regulation existed here, the fee paid in the first instance might, in such cases, be reduced to a much smaller sum, in order to produce a given revenue, than under the present system. But the greatest advantage presented by such a regulation is, that it would wipe out of being at an early stage of their existence a large proportion of patents which are worthless and unused, and only stand in the way of other inventors.

During nine months prior to the first day of July, 1853, two thousand and forty seven patents were issued by the English office. The fee necessary to prolong the existence of each of these, after the end of three years from its date, was only paid on 619 of the number, leaving 1,428 to expire at the end of three years.

Under our system, these would all have continued in existence for the whole fourteen years. The majority would have been valueless, and only have served as a clog upon other inventors, inasmuch as many meritorious and useful inventions, subsequently made, might be found so far to interfere with some of those worthless patents that the former could not be used, without paying tribute to the owners of the latter.

A French patent is granted for fifteen years, but becomes void upon a failure to pay a certain annual duty. A very small percentage of them ever continue their existence throughout the whole period of fifteen years.

It has been stated in the public prints that the 2,088 patents issued in France in 1846 less than three hundred remain in force ten years afterwards, the rest having been swept away by the regulation requiring annual installments of the patent duty.

These payments are inconveniently frequent in France, and perhaps are more numerous in England than would be deemed expedient; but with proper modification the principle which lies at the bottom of these regulations has much to recommend it, and might, it is believed, be advantageously adopted by us.

Something in the nature of the English writ of Scire Facias might also with advantage be incorporated into our law. At present there is no power in this country to repeal a patent under any circumstances. Although the very day after it has issued it should be ascertained that the invention was pirated by the patentee from the real inventor, or although, for any other cause, the patent may have been erroneously granted, it must remain in existence the whole period of fourteen years. It is true in these cases the patent would be invalid, and, if granted to the wrong person, another patent may be issued to the real inventor; still the invalid patent is allowed to exist, and may be made productive of much mischief, enabling the holder to impose upon the public either by the sale of a worthless patent, or by extorting money for permission to use the invention, which most persons would pay in preference to engaging in litigation with the holder of a patent issued in pursuance of the statute, and allowed by law to continue its existence.

Another regulation of the English patent office which deserves to be imitated is that by which all of the patents that are issued are directed to be printed separately, and sold at prices which will merely defray expenses.

I regard such an arrangement as being in an eminent degree useful and desirable for the following among other reasons:

It would enable the office to furnish complete copies of any patent, including the drawings, for one-tenth part of what they cost at the present time. It would afford the means of placing a copy of all the patents wherever they are needed for the convenience of the office or of the public, instead of having only one single copy, as at present, for all to refer to, which is wanted often by two or more persons at the same time, and which becomes worn out, so as to require to be re-written after the end of a few years. It would be a great source of economy in another particular, as the mechanical reports of this office might thus be abridged in a very great degree, as nothing further would be necessary in the annual reports than to make a complete and full analytical index of all the patents that had been issued through the year. If, in addition to what is above suggested, a copy of all the patents for the year, with the drawings attached, were deposited in the office of the clerk of each district court of the United States, nothing further in this respect would seem to be requisite. The reports would point out the general nature of the inventions made within the year; whoever desired to obtain more minute information as to any particular case could, for a few dimes, obtain from the Patent Office a complete specification and drawing of the invention, and every State would be furnished with at least one complete copy of all the patents, deposited in the very place where it could be found most useful and convenient for the purpose of reference by litigants or inventors.

To make the system complete, however, a like publication should be made of all previous patents, and also a complete analytical index of the whole. This would indeed be a work that would be worthy of the office and of the country. I feel a strong desire and a confident hope that this work will soon be commenced and consummated with all convenient despatch.

Some of the other regulations of the English and French offices are of more doubtful expediency. Among these is the entire dispensing with all examinations, such as are made in this office. Such examinations are, doubtless, productive of much good. But at the same time I think it by no means certain that this portion of our official action is placed precisely upon the correct footing. I am every year yielding more and more to the conviction that the decisions of the office in reference to patentability should not be peremptory, but merely advisory, and that some system like that suggested in my last annual report might, with great advantage, be substituted for that now in force.

But radical changes should be made with caution, and upon the clearest convictions that such changes will prove salutary. I am, therefore, hardly prepared to urge such alterations at once. But I feel firmly impressed with the belief that we shall come to this result at last, and that the right of an inventor to protection will not be left to the arbitrary determination of any officer under the government.

The propriety of changes in the rate of patent fees has been urged upon the attention of Congress in several of the last annual reports, and nothing new suggests itself to my mind on that subject at present.

Fully confident that the changes recommended would prove salutary, and that a rate somewhat increased over that now in existence is actually necessary to enable the office to effect completely the purposes for which it was established, the favorable consideration of Congress is again invited to this subject.